The white Christian nationalist Supreme Court

Fig. 1. “Protesters in Foley Square defending the right to abortion following the leak of a draft Supreme Court opinion that would overturn Roe v. Wade. Part of 2022 abortion protests in the United States.” Photograph by Legoktm [pseud.], May 3, 2022, via Wikimedia Commons, CC BY-SA 4.0.

Lawrence Hurley quotes a number of people, often former Supreme Court clerks,^[1] saying essentially this:

The court’s legitimacy comes down to whether the public thinks the court is doing law, not politics.

It is important that the public think the justices are reaching decisions in good faith based on the law, Girgis said. “It’s bad for the system if the public doesn’t think that’s what they are doing.^[2]

But it isn’t just politics. It’s religion. And it’s white Christian nationalism.

The Court is imposing a particular white Christian nationalist view of what sort of country the U.S. should be. Now arguably, this is inevitable, that the Court had itself previously imposed a more liberal view of what sort of country the U.S. should be.

But this Court has become a full partner in a longstanding and ongoing project to establish a competitive authoritarian regime, in which a majority will, for all practical purposes, no longer have the ability to challenge the power of money or vote out Republicans:

Even before the recent abortion ruling, progressive activists had been raising the alarm about what they view as a court out of step with the nation, with the 6-3 conservative majority made possible only because Republican President Donald Trump was able to fill three vacancies in a single four-year term. One of the vacancies, created by the death of conservative Justice Antonin Scalia in 2016, dated to the Obama administration, and Trump was able to fill it only because the Republican-led Senate refused to take action on [Barack] Obama’s nominee, Merrick Garland, now the attorney general.

Liberals also point to the fact that Republican presidents have appointed six of the nine justices despite having lost the popular vote in seven of the last eight presidential elections.

“There’s a real minority-rule component to the way the court is constituted that is somewhat unique historically, which affects its legitimacy,” said Carolyn Shapiro, a professor at Chicago-Kent College of Law, who clerked for [Stephen] Breyer.^[3]

I have previously accepted that the peculiarities of how the electoral college and Senate are constituted were meant to preserve the relevance of rural (conservative) electorates. However, as I wrote then, it is clear that an inevitably tenuous balance has swung too far in favor of rural voters,^[4] now with results apparent in Supreme Court rulings that favor a white Christian nationalist competitive authoritarian regime,^[5] alleged gun rights,^[6] and restrictions on the right to an abortion.^[7]

If the Court wants to be seen as legitimate, it needs to look a lot less like a white Christian nationalist Court.

1. ^[1]Lawrence Hurley, “Justices join debate on Supreme Court’s legitimacy after abortion ruling,” NBC News, September 18, 2022, https://www.nbcnews.com/politics/supreme-court/justices-join-debate-supreme-courts-legitimacy-abortion-ruling-rcna47795↩
2. ^[2]Sherif Girgis, quoted in Lawrence Hurley, “Justices join debate on Supreme Court’s legitimacy after abortion ruling,” NBC News, September 18, 2022, https://www.nbcnews.com/politics/supreme-court/justices-join-debate-supreme-courts-legitimacy-abortion-ruling-rcna47795↩
3. ^[3]Lawrence Hurley, “Justices join debate on Supreme Court’s legitimacy after abortion ruling,” NBC News, September 18, 2022, https://www.nbcnews.com/politics/supreme-court/justices-join-debate-supreme-courts-legitimacy-abortion-ruling-rcna47795↩
4. ^[4]David Benfell, “Mitigating the democratic deficit in the United States,” Not Housebroken, December 20, 2020, https://disunitedstates.org/2018/07/15/mitigating-the-democratic-deficit-in-the-united-states/↩
5. ^[5]Marjorie Cohn, “Supreme Court Drives a Stake Through the Heart of the Voting Rights Act,” Truthout, July 2, 2021, https://truthout.org/articles/supreme-court-drives-a-stake-through-the-heart-of-the-voting-rights-act/; Gail Collins, “Surprise! The Rich Won One,” New York Times, April 2, 2014, http://www.nytimes.com/2014/04/03/opinion/surprise-the-rich-won-one.html; David Gans, “Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act,” SCOTUSblog, July 7, 2021, https://www.scotusblog.com/2021/07/selective-originalism-and-selective-textualism-how-the-roberts-court-decimated-the-voting-rights-act/; Josh Gerstein and Zach Montellaro, “Supreme Court nixes California disclosure law in blow to dark-money opponents,” Politico, July 1, 2021, https://www.politico.com/news/2021/07/01/supreme-court-california-disclosure-law-donors-497554; Scott Lemieux, “How the Supreme Court’s Arizona voting rights decision will affect challenges to Georgia’s law,” NBC News, July 1, 2021, https://www.nbcnews.com/think/opinion/how-supreme-court-s-arizona-voting-rights-decision-will-impact-ncna1272928; Sam Levine, “Is the US supreme court having a liberal moment? Not on one crucial issue,” Guardian, July 11, 2020, https://www.theguardian.com/us-news/2020/jul/11/supreme-court-justices-liberal-conservatives; Adam Liptak, “Supreme Court Strikes Down Overall Political Donation Cap,” New York Times, April 2, 2014, http://www.nytimes.com/2014/04/03/us/politics/supreme-court-ruling-on-campaign-contributions.html; Alex Park, “10 Supreme Court Rulings—Before Hobby Lobby—That Turned Corporations Into People,” Mother Jones, July 10, 2014, http://www.motherjones.com/politics/2014/07/how-supreme-court-turned-corporations-people-200-year-saga; David G. Savage, “Supreme Court rebuffs Montana on corporate election spending,” Los Angeles Times, February 17, 2012, https://www.latimes.com/world/la-xpm-2012-feb-17-la-na-court-montana-20120218-story.html; David G. Savage and Mark Z. Barabak, “Supreme Court’s approval of partisan gerrymandering raises 2020 election stakes,” Los Angeles Times, June 27, 2019, https://www.latimes.com/politics/la-na-pol-supreme-court-partisan-gerrymandering-republicans-20190627-story.html; Nicholas Stephanopoulos, “The Supreme Court showcased its ‘textualist’ double standard on voting rights,” Washington Post, July 1, 2021, https://www.washingtonpost.com/opinions/2021/07/01/supreme-court-alito-voting-rights-act/↩
6. ^[6]Jess Bravin, “Supreme Court Strikes Down New York Law on Concealed Weapons,” Wall Street Journal, June 23, 2022, https://www.wsj.com/articles/supreme-court-strikes-down-new-york-law-on-concealed-weapons-11655995248↩
7. ^[7]Brent Kendall and Jess Bravin, “Supreme Court Overturns Roe v. Wade, Eliminates Constitutional Right to Abortion,” Wall Street Journal, June 24, 2022, https://www.wsj.com/articles/supreme-court-overturns-roe-v-wade-eliminates-constitutional-right-to-abortion-11656080124↩